The district court erred in holding, in effect, that before any city can be liable for damages to person, for injury received or suffered by reason of any defect or obstruction in a street or other public place, it must first be shown that the city had actual knowledge of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury was received.
It is plaintiff's contention that the city's duty of reasonable care in keeping the streets safe for the traveling public is nondelegable (Nord v. Butte Water Co., 96 Mont. 311,30 P.2d 809; Spiker v. City of Ottumwa, 193 Iowa 844,186 N.W. 465), and that by reason of the ordinance requiring the permission of the city to excavate, after filing of a bond conditioned that the permittee would perform the duty and hold the city harmless, Burt, the plumber, in creating a defect or obstruction in a public place, acted as an agent of the city, in doing the work, and that by reason of that relationship the city is liable in damage for any injury sustained by reason of his negligence. No written permit was issued by the city engineer. However, the ordinance does not require a written permit. A city can only act through its officers. Plaintiff has pleaded facts showing that by reason of a usage, custom and method of procedure adopted by the city officials, upon issuance of a building permit, the plumber, who had filed his bond to indemnify the city, was privileged and permitted to make the excavation.
Primarily the city is charged with the duty of keeping its streets, including the sidewalks, in a reasonably safe condition for travel. (State ex rel. Rocky Mt. Tel. Co. v. Red Lodge,30 Mont. 338; 76 P. 758; Cascade County v. City of GreatFalls, *Page 251 18 Mont. 537, 46 P. 437.) This duty does not preclude the city from permitting a private use of its streets, when exercised for the benefit of the general public, the condition here existing permitting the excavation to connect with a public utility laid in the street. And even though the city requires those using the street for purposes other than public travel to exercise reasonable care, this does not relieve the city of its obligation of using reasonable care to keep the street in reasonably safe condition for travel. The duty being primarily that of the city, it by reason thereof constituted Burt its agent in the performance of that duty. (Nord v. Butte Water Co., 96 Mont. 311,320, 30 P.2d 809; Headley v. Hammond Bldg., Inc.,97 Mont. 243, 247, 33 P.2d 574.) With the premise that, under the circumstances, Burt was a joint agent with the city, we now call the court's attention to the decisions of other court's applying this principle to actions for damages: Spiker v. Cityof Ottumwa, supra; City of Denver v. Aaron, 40 P. 587 (Colo.); Tabor v. City of Buffalo, 136 App. Div. 258,120 N YS. 1089; Parks v. City of New York, 111 App. Div. 836, affirmed 187 N.Y.S. 555, 80 N.E. 1115; Godfrey v. City of NewYork, 104 App. Div. 357; District of Columbia v. Woodbury,136 U.S. 450, 34 L.Ed. 472, 10 Sup. Ct. Rep. 990; Savannah v.Donnelly, 71 Ga. 258; Gnau v. Ackerman, 166 Ky. 258,179 S.W. 217; Russell v. Columbia, 74 Mo. 480; Haniford v.Kansas City, 103 Mo. 172, 15 S.W.; Howe v. Richards,32 S.D. 66, 142 N.W. 664.
In conclusion, it is respectfully submitted:
1. That by the ordinance, the city cast its duty to properly guard the excavation upon Burt, and in effect said "We look to you to do these things, without supervision, but if you fail, and the city is compelled to respond in damages, you must indemnify us."
2. That by giving Burt carte blanche authority to do the work and to protect it, without supervision, the City in effect created Burt its agent in the performance of its nondelegable duty to protect the traveling public.
3. That Chapter 122, Session Laws, Montana, 1937, was not *Page 252 intended to cover defects or obstructions occurring from positive and affirmative action, but rather those defects and obstructions occurring by reason of deterioration and decay and in the usual and ordinary usage of streets. Appellant has not alleged notice to the city of the defect in the boulevard as required by Chapter 122, Session Laws, 1937, but has alleged a course of conduct on the part of respondent of following an accepted usage, custom, and method of procedure of not requiring a permit to open up, dig into, excavate in any of the streets of the city. This custom is alleged to show that actual notice of the existence of the defect was not necessary. She also alleges the custom of leaving the hole, at the point of contact with the city's water mains, open until the respondent could make the connection; neither of these customs and usages is admissible of proof. (Penn v. Oldhauber, 24 Mont. 287,61 P. 649; Ettien v. Drum, 32 Mont. 311, 80 P. 369; State v. Broadwater Elevator Company et al, 61 Mont. 215,201 P. 687; Kohn v. Sacramento Electric Gas Rg. Co., 168 Cal. 1,141 P. 626; Portland Fish Co. v. Benson, 56 Or. 147,108 P. 122; Clark v. Allaman, 71 Kan. 206, 80 P. 571;Crocker Nat. Bank of San Francisco v. Byrne McDonnell,178 Cal. 329, 173 P. 752.) A complete digest of this phase of the law appears in Vol. 13, Montana and Pacific Digest, starting at *page 12.
Chapter 122 Laws of 1937 is constitutional. (Forsyth v.Saginaw, 158 Mich. 201, 122 N.W. 523; Schigley v. Waseca,106 Minn. 94, 118 N.W. 259; Goddard v. Lincoln, 69 Nebr. 594, 96 N.W. 273; McMullen v. Middletown, 187 N.Y. 37,79 N.E. 863; McNally v. Cohoes, 53 Hun, 202, 6 N.Y. Supp. 842 (affirmed 127 N.Y. 350, 27 N.E. 1043 without discussion of the constitutionality of the statute); Gregorious v. Corning,140 App. Div. 701, 125 N.Y. Supp. 534 (affirmed in 206 N.Y. 722,
*Page 253 100 N.E. 1128); Minton v. Syracuse, 172 App. Div. 39,158 N.Y. Supp. 470; Pullen v. Eugene, 77 Or. 320, 146 P. 822, 147 P. 768, 1191, 151 P. 474; Platt v. Newberg, 104 Or. 148,205 P. 296).
The appellant has cited cases to the effect that the city's duty of reasonable care in keeping the streets safe for the traveling public is non-delegable. It is unquestionably true that the city cannot relieve itself of its duty or corresponding liability by delegating to others the right to make excavations or create hazards in the public streets. However, the fact that the duty is non-delegable does not make the municipality liable under all conditions. The municipality is not an insurer of the safe condition of its streets, sidewalks and crossings and is bound only to use reasonable care to keep its streets and sidewalks in a reasonably safe and good condition for travel. (Martin v. City of Butte, 34 Mont. 281, 86 P. 264.)
Although it is not pleaded or alleged in plaintiff's complaint that Myron C. Burt was a licensee of the City of Billings, or a permit holder, to refute appellant's brief and argument, even ifit could be found that he was, it is the position of the respondent that, nevertheless, there is no liability on the city unless there is actual notice and an opportunity to repair the defect and that consequently the complaint does not state a cause of action. The rule is stated in 43 C.J., p. 994.
The grant of a license does not make the licensee the servant or agent of the municipality so that it will be responsible for their acts. (Fifield v. Phoenix, 4 Ariz. 8283, 36 P. 916; 24 L.R.A. 430; Stackhouse v. Lafayette, 26 Ind. 17, 89 Am. Dec. 450; Susquehanna Depot v. Simmons, 112 Pa. 384-5 A. 434, 56 Am. Rep. 317; Copeland v. Seattle, 33 Wn. 415,74 P. 582, 65 L.R.A. 333.) The fact that the municipality has taken a bond from a licensed corporation to save the municipality harmless from the results of possible negligence will not increase the municipality's liability in case of such negligence. (Terry v. Richmond, 94 Va. 537, 27 S.E. 429, 38 L.R.A. 834.) Where an injury results from the negligent role in which the licensee exercises a brief grant to him, the municipality can be held liable for *Page 254 a resulting injury only on proof of knowledge or notice to the municipality and subsequent acquiescence in the use or condition existing. (Macer v. O'Brien, 356 Ill. 486, 190 N.E. 904;Ehret v. Scarsdale, 269 N.Y. 198, 199 N.E. 56, 25 Am. Jur. 731, 42 A.L.R. 1216.)
Plaintiff has not only failed to plead actual notice, but has also completely failed to allege that the city had a reasonable opportunity to remedy the defect. Plaintiff brought action against the city of Billings to recover for personal injury sustained in a fall into an excavation in one of the city's streets. A general demurrer to the complaint was sustained, and judgment entered thereon for defendant from which plaintiff has appealed.
The complaint is lengthy, with pleading of city ordinances relating to building permits and excavations in the streets and allegations as to general practice followed by the city officials in respect to the regulations provided for therein. The fact allegations as to what occurred and as to the negligence relied on as ground of recovery are substantially as follows:
The excavation into which plaintiff fell was in a parking strip between the sidewalk and the curb. It was directly in front of a lot on which a new house was under construction and had been made in laying a water pipe and making connection with the city water main. It was covered over with loose boards and planks. The parking was faced with a concrete curb next to the street paving but was not yet surfaced with grass and was muddy.
It was in the daytime, 9:45 in the morning of October 3rd. Plaintiff, alighting from an automobile in the paved street, undertook to cross over to the sidewalk, and walking on the boards and planks over the excavation, fell in and was injured.
The excavation was about six feet deep and large enough in other dimensions for a man to work in. The connection with the water main had been completed by the plumber and the excavation *Page 255 had been left partly open for inspection to be made by the City Water Department, as was the practice in making such water service connections. There were no warning signs and no guards or covering other than the loose boards and planks laid over the hole. The negligence complained of against the city was its failure to see to it that those making the excavation would have it securely covered and have signs, markers or signals placed there to warn pedestrians, and in that the city itself had failed to cover the excavation securely and to erect such warning signs. Negligence is also predicated upon the failure of the city to close the excavation as soon as possible after completion of the work for which it had been opened.
The error specified is the sustaining of the demurrer and the entry of judgment for the defendant. The sole question presented is whether the complaint states a cause of action.
Counsel on both sides have treated the case upon the premise of the excavation as creating a condition of the street which was dangerous to pedestrians and the injury sustained by the plaintiff as being the direct result thereof. The whole argument has been upon the question of responsibility for the condition of danger in the street and whether the city was involved to the extent that it is liable for the damage. In that aspect of the case the decision would rest on the question of notice and knowledge of the condition by the city, for it is its duty to keep the streets and all public ways in reasonably safe condition for travel.
The rule is that for any dangerous condition of the streets[1] brought about by the city itself it is responsible, and for any such condition brought about other than by acts done by the city itself the city's responsibility arises upon notice thereof, and for injury resulting to anyone therefrom it is liable only if it "had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received." It is so provided by Chapter 122, Laws of 1937, amending section 5080 of the Revised Codes of 1935.
For the application of the rule we must first have a case to *Page 256 [2] which it applies. The city is not an insurer of absolute safety to pedestrians in the use of the streets and other public ways, nor is it liable for injury sustained by pedestrians because of their own carelessness in traveling where there may be danger of injury to them. And so here it is necessary first to determine whether the facts as related in plaintiff's complaint show that the excavation in the place where it was and the condition in which it was left could be reasonably said to be of danger to pedestrians, and that the injury sustained by the plaintiff was caused by the failure of the city to warn pedestrians against the danger.
The excavation was in the parking where pedestrians do not ordinarily walk. It was between the sidewalk and the paved street and there was no necessity for anyone to walk there. A person walking on the sidewalk or in the street would be in no danger due to the excavation being in the parking. On the abutting lot a new house was under construction with the premises generally torn up and in an unfinished condition. The excavation was freshly made and there must have been the dirt from it piled up alongside. The hole was of a size large enough for a man to work in and was covered over with loose boards. There was no necessity for anyone walking across at this particular place and there was nothing about the situation there, as disclosed by the complaint, as being suggestive of the boards being laid there for that purpose. In fact, it could not reasonably be assumed that a prudent person would choose such a place to walk in view of the muddy, torn-up condition of the premises generally. Even if the city officials knew all about the excavation and had seen it in the condition it was in on October 3rd, we cannot see any negligence in their failure to place more secure covering over it nor in failing to erect barriers and warning signs to keep pedestrians from walking over it. At night, warning lights might reasonably have been required to guard against anyone unknowingly coming upon it. But we are not concerned about the condition there at night. This was in the forenoon of the day, in broad daylight. Everything was open to view. Warning *Page 257 signs were not necessary to tell of what was there. It could all[3] be seen. When the conditions on the ground are plainly visible and are themselves a warning of danger, barriers and warning signs are unnecessary to ward off pedestrians. (Lombardi v. Bates Rogers Const. Co., 88 Wn. 243,152 P. 1025; Compton v. Revere, 179 Mass. 413, 60 N.E. 931;City of Rock Island v. Gingles, 217 Ill. 185, 75 N.E. 468;District of Columbia v. Moulton, 182 U.S. 576, 21 S.Ct. 840,45 L.Ed. 1237.)
Plaintiff, alighting from an automobile on the paved street in[4] the vicinity of the excavation wanted to get on the sidewalk. Between the street paving and the sidewalk was the strip of unfinished parking, without grass and muddy. There was the excavation with boards laid over it. Plaintiff, rather than going to the corner crossing to reach the sidewalk, chose to walk on the boards over the excavation. She was in no way misled. What she did was of her own volition. It was at her own peril that she chose this way of reaching the sidewalk. For any injury resulting to her in walking where she did, she cannot lay the blame on the city. (O'Laughlin v. The City of Dubuque, 42 Iowa 539;Lombardi v. Bates Rogers Const. Co., supra.) The complaint contains no allegations of the exercise of care by the plaintiff. On the contrary, it shows affirmatively that it was her own lack of care and her own rashness in undertaking to walk where she could see there was danger of a fall that produced the injury of which she complains.
The infirmity of plaintiff's case is shown by the complaint itself in that it appears her own negligence was the proximate cause of the injury. No cause of action is stated and the demurrer to the complaint was properly sustained. (Armstrong v.Billings, 86 Mont. 228, 283 P. 226; Raymond v. City ofLowell, 6 Cush. Mass., 524, 53 Am. Dec. 57; 45 C.J. 1108, 1117, sections 680 and 694 "Negligence.")
The judgment of the lower court is affirmed.
MR. JUSTICE MORRIS concurs. *Page 258